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 STATEMENT  OF  COMMISSIONER  JONATHAN  S.  ADELSTEIN, 
 APPROVING  IN  PART  AND  DISSENTING  IN  PART 
 Re:  Complaints  Against  Various  Television  Licensees  Concerning  Their  February  1,  2004,  Broadcast  of  the  Super  Bowl  XXXVIII  Halftime  Show 


 Based  on  a  careful  review  of  the  record,  I  find  today’s  remedy  totally  inadequate.  After  all  the  bold  talk,  it’s  a  slap  on  the  wrist  that  can  be  paid  with  just  7˝  seconds  of  Super  Bowl  ad 
 time.  The  $550,000  fine  measures  up  to  only  about  a  dollar  per  complaint  for  the  more  than  542,000  complaints  that  flooded  into  the  FCC  after  the  broadcast. 


 The  Commission  is  required  by  Congress  to  enforce  federal  restrictions  against  the  broadcast  of  indecent  material,  and  I  agree  with  the  indecency  finding  here.  We  were  deluged 
 with  a  record  number  of  complaints  about  the  Super  Bowl  halftime  show,  and  took  the  unusual  step  of  launching  an  investigation.  But  after  a  major  announcement  and  months  of  investigation, 
 today’s  enforcement  action  goes  out  of  its  way  to  focus  narrowly  on  the  exposure  of  Janet  Jackson’s  breast  on  twenty  CBS-  owned  stations. 


 Most  troubling,  this  decision  sets  a  puzzling  precedent  by  failing  to  hold  all  licensees  responsible  for  the  material  broadcast  over  their  stations.  Why  announce  such  a  thorough 
 investigation  if  we  just  let  some  of  the  stations  that  broadcast  this  material  completely  off  the  hook?  It  is  true  that  the  CBS  affiliates  are  as  much  the  innocent  victims  as  the  families  who  were 
 stunned  to  see  such  gratuitous  nudity  during  a  family  viewing  event.  In  this  case  CBS  affiliates  –  like  the  general  public  –  had  no  idea  what  was  coming,  but  this  is  true  for  most  live  programming. 
 This  aspect  of  today’s  action  shows  the  lack  of  a  coherent  long-  term  framework  that  should  form  the  basis  of  all  our  indecency  enforcement  efforts. 


 Compliance  with  federal  broadcast  decency  restrictions  is  the  responsibility  of  the  station  that  chooses  to  air  the  programming,  not  the  performers.  Less  than  a  week  before  the  Super 
 Bowl,  the  Commission  fined  a  television  station  for  a  similar  case  of  gratuitous  brief  on-  camera  nudity.  Since  the  Super  Bowl  outcry,  Viacom  has  acted  responsibly  by  apologizing,  by 
 instituting  measures  such  as  time  delays  to  keep  indecency  off  the  airwaves,  and  by  cooperating  fully  with  our  investigation.  Viacom  should  be  commended  for  these  steps.  Nevertheless, 
 subsequent  actions  cannot  excuse  the  fact  that  indecent  material  was  broadcast  to  100  million  viewers,  including  one  in  five  American  children. 


 While  the  Commission  must  always  proceed  cautiously  in  broadcast  decency  cases,  this  type  of  graphic  and  gratuitous  nudity  is  not  a  close  call.  The  millions  of  our  nation’s  children 
 who  were  ambushed  by  the  Super  Bowl  halftime  show  deserve  better  protection.  A  fine  of  7˝  seconds  of  ad  time  is  scarcely  any  deterrent.  The  shockwaves  are  still  being  felt  by  this  shameful 
 episode.  I  fear  that  today  we’re  responding  to  a  “wardrobe  malfunction”  with  a  regulatory  malfunction. 
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